[62] Second, I adopt the statement by the commissioner that
the s. 65(5.7) exclusion has the effect of removing from FIPPA
records: ( i) whose disclosure would pose no safety or security
concern (general statistical information); and ( ii) in the custody
of institutions, other than hospitals, that were subject to FIPPA
prior to the 2010 enactment of s. 65(5.7).

[63] As part of these proceedings, the commissioner has
referred to a number of orders which have denied or partially
denied access to records relating to abortion services. Of particular significance is Order PO-2378 (2005), where a request was
made for information relating to “overall funding for all independent health clinics that provide apportions from June 2003
to June 2004”. In that decision, the commissioner partially
upheld non-disclosure by finding that overall funding could be
disclosed, but the disclosure of financial information when
linked with names of each clinic could reasonably be expected to
give rise to harms contemplated by s. 14(1) of FIPPA.

[64] While I question if the objective of s. 65(5.7) was to
address an actual legislative gap in either PHIPA or FIPPA,
it does not detract from the overall merit of protecting the
privacy and safety of patients seeking abortion services and
those involved in the provision of abortion services. I conclude
that s. 65(5.7) meets the requirements of the first stage of the
Oakes test.

Are the means reasonably and demonstrably justified?

[65] There is no evidence that the process leading up to
the adoption of s. 65(5.7) was intended to carefully design the
legislative provisions required to achieve the object in question.
While the evidence of the Ontario’s affiant suggests that there
was an assessment of the merits of using an exemption within
FIPPA rather than an exclusion, there is little other evidence
which suggests that a process was followed to assess the need
and risk that existed to justify an additional protection prior
to the adoption of s. 65(5.7) and how Ontario could best address
the identified need and risk after having made hospitals subject
to FIPPA.

[66] Furthermore, there is no evidence that any consideration
was given to impairing the freedom of expression right to records relating to abortion services as minimally as possible. To
the contrary, Ontario went ahead with a broad brushed exclusion which includes no criteria to allow for records which do
not impact the objective of protecting the privacy and safety
of patients seeking abortion services. As previously stated,
s. 65(5.7) now excludes records which were previously being